Case history

Daly and Alconbury are the two most significant judgments since the implementation of the Human Rights Act. Tim Owen QC

and James Maurici comment on their impact

R v Secretary of State for the Home Department, ex parte Daly
There is nothing new about the boundaries of public law being reformulated or extended by prison litigation; Ex parte Hague marked an important extension of the High Court's judicial review jurisdiction, ex parte Doody was a landmark case about procedural fairness, and in Leech (No 2), Pierson and Simms the common law principle of legality was articulated and developed so that even before the Human Rights Act (HRA) came into force, Lord Hoffmann felt able in Simms to say (somewhat mischievously) that the common law had fully anticipated its provisions. The recognition by Lord Justice Shaw in St Germain that prisoners are to be regarded as citizens behind bars, meant that prisoners' cases were thereafter destined to raise the question of whether judges would withstand the executive's assertion that in the absence of express Parliamentary approval, all basic rights could be overridden by a process of necessary implication. The outdated Prison Act 1952 provides no express authority whatsoever for the destruction of a prisoner's basic rights other than his right to liberty.
Daly brought up the legality of a cell-searching policy which excluded prisoners from their cells while prison staff searched all their belongings, including their legally privileged documents. It came as no surprise that the case provided an ideal opportunity to explore the difference between the traditional Wednesbury test and the approach of proportionality required under the HRA. What was perhaps more remarkable was the then Home Secretary Jack Straw's keenness to uphold a blanket policy affecting the fundamental right to legal privilege of all prisoners. This is especially surprising after his earlier attempt to justify the blanket exclusion of meetings between prisoners and journalists was met with such a singular lack of success in Simms.
But good things have come out of Straw's addiction to blanket policies. It is now clear, as Lord Steyn said in his important speech in Daly, that there is a material difference between the Wednesbury/Smith grounds of review and the approach of
proportionality where convention rights are at stake. This should have been obvious, but a series of post-HRA deportation cases – in particular the decision of the Court of Appeal in Mahmood – had suggested that in applying the test of proportionality under the HRA, the court's task is not to exercise a primary judgment of whether any interference with rights is justified, but to review the primary decision-maker's determination. The approach of the Master of the Rolls meant, in effect, that it was for the decision-maker to decide whether an interference with a protected right was necessary. It was also for the courts to decide whether his decision was Wednesbury reasonable, with due allowance given for the decision-maker's discretionary area of judgment.
The House of Lords 'clarified' (a euphemism for overruled) an aspect of the reasoning in Mahmood and reaffirmed the contours of the principle of proportionality first elucidated in the Privy Council's decision in de Freitas. In Daly, it identified just how the intensity of review is greater under the HRA than under Wednesbury, without necessarily resulting in radically different outcomes in all cases.
First, the proportionality test may require the court to assess the balance which the decision-maker has struck in a particular case, not merely whether it is within a range of reasonable decisions. Second, proportionality may require the court to consider and overrule the relative weight accorded to certain interests and considerations. And third, as the outcome of Smith v UK showed, even the heightened scrutiny test will fail to provide sufficient protection for convention rights.
The fact is that Daly would have been decided in precisely the same way by the House of Lords, regardless of the HRA. But this is not to diminish its importance in finally marking the end of the traditional Wednesbury doctrine in cases. What Daly has achieved is hardly revolutionary, but it has returned the law to where everyone thought it should be in the post-HRA age. And a barely suppressed cheer of gratitude will have been heard from applicants' lawyers all over the country at Lord Cooke's remark in one of his final speeches in the House of Lords, that the day will come “when it will be more widely recognised that [Wednesbury] was an unfortunately retrogressive decision in English administrative law”.
Tim Owen QC is a barrister at Matrix Chambers and appeared for the appellant in Daly
R v Secretary of State for the Environment, Transport and the Regions, ex parte Alconbury
On 9 May, the House of Lords delivered its eagerly anticipated judgment in Alconbury Developments Ltd v Secretary of State for the Environment, Transport and the Regions and other joined cases.
In his judgment in the Alconbury case Lord Nolan noted: “The case is one of great practical and constitutional importance for this country, and of importance also for the development of human rights law, both in this country and abroad, and argument has ranged over a wide field.”
The House of Lords considered whether the processes by which the Secretary of State for the Environment, Transport and the Regions (SSETR) makes planning decisions and compulsory purchase and highways orders under the Town and Country Planning Act 1990, the Transport and Works Act 1992, the Highways Act 1980 and the Acquisition of Land Act 1981, were compatible with Article 6(1) of the European Convention on Human Rights, as applied by the Human Rights Act 1998, which requires a fair hearing by an independent and impartial tribunal. The Divisional Court made declarations of incompatibility.
The House of Lords held that:
Article 6 does apply in principle to planning and related decisions. The view that there was no dispute as to civil rights (contestation) sufficient to engage Article 6 was argued by the Lord Advocate, who intervened because of the pending appeal in County Properties v Scottish Ministers, but was rejected by the House of Lords. Some of their Lordships, in particular Lord Hoffmann, were attracted by the Lord Advocate's arguments, as they provided a potentially simpler solution to the issues. They would have accepted the argument if it was not for Strasbourg jursiprudence to the contrary. Article 6 is engaged where there are persons whose enjoyment of property may be affected by the granting of planning permission.
Decision-making by an administrative body, particularly in planning and related cases, complied with Article 6 by virtue of the rights of appeal on judicial review grounds.
The decision of the European Court of Human Rights (ECHR) in Bryan v UK was of wider significance than attributed to it by either the Divisional Court or the Court of Session in County Properties and, together with a number of other Strasbourg cases, provided clear guidance as to the result in these appeals. The House of Lords decision has been criticised as restrictive and conservative, but was closely based on well-established Strasbourg case-law. It is very doubtful that the ECHR would have reached a different decision.
Some of the Law Lords referred to the existence of safeguards in the administrative procedure, including that of a quasi-judicial hearing before an inspector, following Bryan. However, they did not indicate, other than by noting the actual safeguards present, what safeguards were strictly necessary. Lord Hoffmann was the only one to draw a distinction between planning cases involving factual disputes, which were more akin to the determination of rights and needed safeguards, and 'policy' questions, which involved discretionary decisions in the public interest which did not.
The dual role of the SSETR as policy and decision-maker was compatible with Article 6, as, although he was not independent or impartial, compatibility was secured by judicial review. Lord Hoffmann said: “It is the business of the Secretary of State, aided by his civil servants, to develop national planning policies and coordinate local policies. These policies are not airy abstractions. They're intended to be applied to actual cases. It would be absurd for the Secretary of State, in arriving at a decision in a particular case, to ignore his policies and start with a completely open mind.”
The democratic accountability of the Secretary of State in his roles in the decision-making process was compatible with Strasbourg jurisprudence on Article 6.
The financial interest of the Crown in a disposal of Crown Land, or its interest as the promoter of a compulsory purchase order, did not of itself render the decision-making process incompatible with Article 6.
The House of Lords recognised that what was in issue was the wider question of the compatibility of administrative decision-making in specialist areas with Article 6. The Alconbury case also raised important issues about the reconciliation of fundamental principles that underlie the convention, namely democracy and the rule of law. Hence, the wider constitutional importance of Alconbury is clear.
The full implications of the House of Lords' decision are still being worked out. There have been a number of recent High Court decisions considering different aspects of planning and government decision-making in the context of Article 6 and more are awaited.
James Maurici is a barrister at 4 Breams Buildings and appeared for the Secretary of State in Alconbury